Court rejects First Amendment concept in Second Amendment case

The First Amendment’s presumption against prior restraints should not be used in Second Amendment cases, a federal appeals court has ruled in rejecting a constitutional challenge to New York’s restrictive handgun-permit law.

Part of the law provides that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.” This provision has been interpreted to mean that individuals can obtain permits for limited purposes, such as hunting or target practice.

However, the state law also says individuals can show “proper cause” to obtain a full concealed-carry license for self-defense only if they can demonstrate a “need for self protection distinguishable from that of the general public.”

After a federal district court upheld the law in September 2011, the plaintiffs appealed to the 2nd U.S. Circuit Court of Appeals. On Nov. 27, a three-judge panel of the 2nd Circuit in Kachalsky v. County of Westchester affirmed the lower court and upheld the law.

The plaintiffs sought to invoke the First Amendment’s presumption against prior restraints — laws that impose hurdles on speech-related activities, such as licensing laws. They argued that just as the First Amendment generally forbids the government from requiring anyone to obtain a license before speaking, the Second Amendment also should forbid government from making individuals obtain licenses before exercising their fundamental right to “keep and bear arms.”

“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” the appeals court panel wrote.

The court recognized the Supreme Court drew analogies between the First and Second Amendments in District of Columbia v. Heller (2008), in which the Court first ruled that the Second Amendment protects an individual right to keep and bear arms, as opposed to a collective right of maintaining a militia.

“But it would be as imprudent to assume that the principles and doctrines developed in connection with the First Amendment apply equally to the Second, as to assume that rules developed in the Second Amendment context could be transferred without modification to the First,” the appeals panel reasoned.

Furthermore, the appeals court noted that the New York law on issuing full-carry permits was not without standards. It was not an example of a law that vests government officials with “unbridled discretion” — a very negative term in First Amendment law — in deciding whether to issue or deny permits.

Even though the appeals court rejected the prior-restraint concept, it did embrace analogies to other parts of First Amendment law. The court said the highest form of judicial review in free-speech law was reserved for the core types of speech the First Amendment was designed to protect – such as pure political speech — whereas a lesser form of judicial scrutiny is used to review restrictions on commercial speech (advertising). The panel reasoned that a higher form of judicial review should be reserved for restrictions on handgun ownership in the home as opposed to carrying a handgun in public.

The opinion shows a continued trend in the courts to discuss First Amendment free-speech precedents when evaluating Second Amendment claims.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

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